IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

United States of America, : CRIMINAL ACTION

: NO. 05-280-02

v. :

:

Eric Andrews. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. August 19, 2020

Table of Contents

I. INTRODUCTION .............................................. 2

II. BACKGROUND ................................................ 3

III. LEGAL STANDARD........................................... 6

IV. DISCUSSION ................................................ 6

A. The Court’s Authority to Reduce a Sentence............... 7

1. Extraordinary and Compelling Reasons ................... 8

2. Reasons Other Than Illness, Old Age, and Family 

Circumstances .............................................. 12

a. Length of the Sentence................................... 15

b. Amendment to § 924(c).................................... 18

B. Extraordinary and Compelling Reasons in this Case....... 24

V. CONCLUSION ............................................... 37

In 2018, Congress enacted the First Step Act (“FSA”). The 

FSA provided for, among other things, the reduction of federal 

sentences, if the federal prisoner could demonstrate 

extraordinary and compelling reasons warranting such relief. 

Circa March 2020, the United States (as well as most of the 

world) recognized the presence of a novel coronavirus, which 

could endanger the lives of millions of people. Particularly at 

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risk, because of the inherent conditions of incarceration, were 

persons kept in custodial environments. 

The confluence of these twin events, the passage of the FSA 

and the appearance of the coronavirus, created a perfect storm, 

generating countless petitions for compassionate release giving 

birth to district court decisions in the hundreds, granting and 

denying relief.

Without guidance from Congress and the Sentencing 

Commission (which lacks a quorum to act) concerning the meaning 

of the terms extraordinary and compelling, and in the fog of war 

created by incomplete and at times conflicting health 

information, courts have struggled to find their way to a 

principled disposition of compassionate release petitions. 

With this experience in mind, the Court will proceed to 

consider the instant motion for compassionate release by first 

defining the scope of its own authority to reduce a lawfully 

imposed sentence and, upon locating such authority, determining

whether the facts and circumstances alleged here rise to the 

level of extraordinary and compelling.

I. INTRODUCTION

Eric Andrews is serving a 312-year sentence for thirteen 

armed robberies he committed when he was nineteen years old. The 

FSA amended the compassionate release provision in the United 

States Code to allow defendants to move the Court for a 

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reduction of a sentence for extraordinary and compelling 

reasons. Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239

(codified at 18 U.S.C. § 3582(c)(1)(A)). Under this authority, 

Andrews moves the Court for a reduction of his sentence.

II. BACKGROUND

In 2005, Andrews, at nineteen years of age, was charged 

with committing thirteen robberies, conspiring to commit 

robberies, and brandishing a firearm during the completed 

crimes. Andrews was indicted along with three others, and of the 

three, two pleaded guilty, and one, along with Andrews,

proceeded to trial, where the two were found guilty.

Andrews was sentenced to 312 years’ imprisonment: the 

conspiracy and substantive robbery counts account for fiftyseven months of his sentence, while the other 3,684 months of 

his sentence were imposed on account of thirteen counts of 

brandishing a firearm in furtherance of a crime of violence 

under 18 U.S.C. § 924(c). These firearm counts each carry a 

mandatory minimum sentence of seven years. But at the time 

Andrews was sentenced, successive § 924(c) counts in the first

prosecution each carried a mandatory minimum of twenty-five

years. Thus, with twelve § 924(c) counts carrying mandatory 

twenty-five-year sentences, which must run consecutively, this 

disproportionate sentence was mandated.

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The FSA amended § 924(c) to provide that the twenty-fiveyear mandatory minimum only applies to a “violation of this 

subsection that occurs after a prior conviction under this 

subsection has become final.” § 403(a), 132 Stat. 5194, 5221–22

(codified at 18 U.S.C. § 924(c)(1)(C)). While the amendment was 

titled a “clarification,” the provision was explicitly not 

retroactive, unlike other portions of the FSA. § 403(b), 132 

Stat. 5194, 5222. Even if the amendment applied retroactively or 

Andrews were sentenced today under the amended provision, he 

would be sentenced to a mandatory minimum of ninety-one years 

for the thirteen § 924(c) counts.

Andrews argues that he does not seek retroactive 

application of the § 924(c) amendment, but that he instead moves 

the Court for compassionate release under 18 U.S.C. 

§ 3582(c)(1). He asks for a reduction of his sentence to time 

served, after having served fourteen years. In arguing that 

extraordinary and compelling reasons exist, Andrews’s motion 

focused on the length of the sentence and the FSA’s reduction of 

§ 924(c) successive mandatory minimums on a first conviction. 

And while not expressly arguing that they are extraordinary and 

compelling reasons, it also pointed to his rehabilitation in 

prison and his young age at the time of the offenses as factors 

under § 3553(a). In his reply to the government’s response, he 

more directly argued that all four of these reasons are 

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extraordinary and compelling when considered together, as part 

of a holistic review, and he added that the decision to charge 

thirteen § 924(c) counts as a trial penalty is also an 

extraordinary and compelling reason. In the briefing—both by 

Andrews and by the government—the question of whether there are 

extraordinary and compelling circumstances here was largely 

eclipsed by the issue of the Court’s power to grant 

compassionate release.

At the oral argument—where the Court pressed the parties 

about whether there are extraordinary and compelling reasons

here—Andrews again asserted the holistic approach. While 

pointing to all five reasons listed above, Andrews especially 

focused on the length of the sentence and the government’s 

decision to charge thirteen consecutive § 924(c) counts. He 

argued, “if this [United States Attorney’s] Office used the 

prosecutorial judgment it used back then against a 19-year-old 

and made him eat 13 consecutive mandatory seven-year sentences, 

this Court would have the authority [to grant compassionate 

release one day after the sentence was imposed].” Oral Arg. Tr. 

45:2–45:5, ECF No. 245.

By way of a letter, after the briefing and argument, 

Andrews also raised his susceptibility to the COVID-19 pandemic, 

due to hypertension requiring medication, as an additional 

extraordinary and compelling reason for granting his motion. 

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III. LEGAL STANDARD

In interpreting a statute, the Court begins “with the 

statutory text,” and “[u]nless otherwise defined, statutory 

terms are generally interpreted in accordance with their 

ordinary meaning.” BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91

(2006) (citations omitted). The Court considers “the specific 

context in which that language is used, and the broader context 

of the statute as a whole,” assumes “that every word in a 

statute has meaning,” and avoids “interpreting one part of a 

statute in a manner that renders another part superfluous.” 

Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp. 

Auth., 539 F.3d 199, 210 (3d Cir. 2008) (internal quotations and 

citations omitted). The Court “also consider[s] the overall 

object and policy of the statute, and avoid[s] constructions 

that produce odd or absurd results or that are inconsistent with 

common sense.” Id. (internal quotations and quotation marks 

omitted).

IV. DISCUSSION

To decide Andrews’s compassionate release motion, the Court 

must first determine its authority to reduce a lawfully imposed 

sentence and, once it locates the scope of the authority, it

must evaluate whether Andrews’s case presents extraordinary and 

compelling reasons for granting the motion.

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A. The Court’s Authority to Reduce a Sentence

The concept of compassionate release is not a novel one. It 

was created with the Comprehensive Crime Control Act of 1984, 

Pub. L. 98-473, § 3582(c)(1)(A), 98 Stat. 1837, 1998–99, which 

also abolished parole and created the current determinate 

sentencing regime. Under the compassionate release provision as 

originally written in 1984, a motion for compassionate release 

could only be brought by the Bureau of Prisons (“BOP”).

§ 3582(c)(1)(A), 98 Stat. 1837, 1998–99. In December of 2018 

Congress enacted the FSA. And the FSA—for the purpose of 

increasing the use and transparency of compassionate release, as 

the relevant section is titled—amended the compassionate release 

provision to allow a motion brought directly by the defendant. 

§ 603(b), 132 Stat. 5194, 5239 (codified at 18 U.S.C. 

§ 3582(c)(1)(A)). Thus, while the BOP was the gatekeeper to 

compassionate release under the Comprehensive Crime Control Act

of 1984, the FSA divested the BOP of this sole gatekeeper role.

Under the compassionate release provision, as amended, the 

Court may, on the defendant’s motion, “reduce the term of 

imprisonment” of the defendant “after considering the factors 

set forth in section 3553(a)” if (1) the administrative 

exhaustion requirement is met, (2) “extraordinary and compelling 

reasons warrant such a reduction,” and (3) “such a reduction is 

consistent with applicable policy statements issued by the 

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Sentencing Commission.” 18 U.S.C. § 3582(c)(1). Because there is 

no dispute that the exhaustion requirement is met here, the 

Court first turns to what the Court may properly consider as 

extraordinary and compelling reasons.

1. Extraordinary and Compelling Reasons

Congress did not define extraordinary and compelling 

reasons, except by providing that rehabilitation alone is not

enough. 28 U.S.C. § 994(t). Instead, Congress directed the

Sentencing Commission (“Commission”) to “describe what should be 

considered extraordinary and compelling reasons for sentence 

reduction” under compassionate release. Id.

Following Congress’s direction, the Commission described 

extraordinary and compelling reasons, in a policy statement, as 

(1) illness, (2) old age, (3) family circumstances, and 

(4) other reasons determined by the BOP. U.S. Sentencing 

Guidelines Manual § 1B1.13 cmt. n.1 (U.S. Sentencing Comm’n 

2018).1 It is undisputed that there is no illness, old age, or 

family circumstance that provides the basis for granting 

compassionate release here. The only question, at the outset, is 

whether the Court, in considering a defendant’s motion for 

compassionate release, may only consider these reasons and other 

 

1 In turn, the BOP does not define “other” reasons, but provides that 

compassionate release can be granted based on illness, old age, or family 

circumstances. Federal Bureau of Prisons, Program Statement 5050.50 (Jan. 17, 

2019).

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reasons determined by the BOP, or whether it may go beyond those 

reasons.

Many district courts have now weighed in on this question, 

and they overwhelmingly conclude that a court can make an 

independent determination of what constitutes extraordinary and 

compelling reasons. Although a minority of district courts have 

held that reasons other than illness, old age, and family 

circumstances are limited to those determined by the BOP,2 “a 

majority of district courts have concluded that the ‘old policy 

statement provides helpful guidance, [but] . . . does not 

constrain [a court’s] independent assessment of whether 

“extraordinary and compelling reasons” warrant a sentence 

reduction under § 3852(c)(1)(A).’” United States v. Rodriguez, -

-- F. Supp. 3d ----, No. 03-cr-00271, 2020 WL 1627331, at *4 

(E.D. Pa. Apr. 1, 2020) (alterations in original) (quoting 

United States v. Beck, 425 F. Supp. 3d 573, 582 (M.D.N.C. 

2019)).

The majority of courts reason that because the Commission’s

policy statement is by its own terms limited to compassionate 

 

2 See United States v. Lynn, No. 89-cr-0072, 2019 WL 3805349, at *4 (S.D. Ala. 

Aug. 13, 2019) (“The Commission may well decide that, since BOP is no longer 

the gatekeeper regarding the filing of motions for compassionate release, 

neither should it be the gatekeeper regarding the residual category of 

extraordinary and compelling reasons for compassionate release. Should the 

Commission so amend its policy statement, the courts will of course be bound 

by Section 3582(c)(1)(A) to follow the amended version. Until that day, 

however, the Court must follow the policy statement as it stands.”), appeal 

dismissed, No. 19-13239-F, 2019 WL 6273393 (11th Cir. Oct. 8, 2019).

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release motions brought by the BOP, the policy statement is 

inapplicable to motions brought directly by defendants. Id.

Therefore, given that the policy statement is applicable only to 

motions brought by the BOP and not those brought by defendants,

the Court can make its own independent determination as to

extraordinary and compelling reasons when the defendant moves 

for compassionate release. Id.3 This is the more persuasive line 

of cases.

The minority’s position is not persuasive because it would 

put motions brought directly by the defendant at a disadvantage 

to those brought by the BOP. In other words, under the minority 

view, when the BOP brings the motion, compassionate release may 

be granted based on reasons other than illness, old age, and 

family circumstances, but when the defendant brings the motion, 

compassionate release may not be granted based on such “other” 

reasons. And, as one court put it, it would be an odd result if 

the defendant could only bring the motion “by accepting a pareddown standard of review that omitted the flexible [“other” 

reasons] catchall standard.” Id. *5.4

 

3 See also United States v. Brown, 411 F. Supp. 3d 446, 449–50 (S.D. Iowa 

2019) (“In the absence of an applicable policy statement . . . the district 

court can consider anything—or at least anything the BOP could have 

considered—when assessing a defendant’s motion.”), order amended on 

reconsideration, --- F. Supp. 3d ----, No. 05-cr-00227-1, 2020 WL 2091802 

(S.D. Iowa Apr. 29, 2020)). 4 The position taken by a minority of courts is also inconsistent with case 

law that provides that courts give no deference to administrative agencies in 

this situation. See Rodriguez, --- F. Supp. 3d at ----, 2020 WL 1627331, at 

*6 n.12 (“[C]ourts ‘do not generally accord deference to one agency’s 

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The government’s argument that the policy statement is 

binding misses the mark because the policy statement does not 

apply to motions by defendants. The government argues that most

courts have ruled incorrectly because the Commission’s policy 

statement is binding, citing Dillon v. United States, 560 U.S. 

817, 819 (2010). But this argument is unavailing because, even 

if binding when the BOP brings the motion, the policy statement

is inapplicable to situations where the defendant, not the BOP, 

brings the motion for compassionate release.5

That said, if the sentencing commission updates the policy 

statement to make it applicable to motions by defendants, the 

Court must ensure that the sentence reduction upon a defendant’s 

motion is consistent with that policy statement.6 In the 

 

interpretation of a regulation issued and administered by another agency.’” 

(quoting Chao v. Community Tr. Co., 474 F.3d 75, 85 (3d Cir. 2007)). 5 See Rodriguez, --- F. Supp. 3d at ----, 2020 WL 1627331, at *4 

(“Accordingly, by its own terms, the scope of the old policy statement is 

clearly outdated and, at the very least, does not apply to the entire field 

of post-First Step Act motions. In other words, for prisoner-filed motions, 

there is a gap left open that no ‘applicable’ policy statement has 

addressed.”); United States v. Beck, 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019) 

(“By its terms, the old policy statement applies to motions for compassionate 

release filed by the BoP Director and makes no mention of motions filed by 

defendants.”). Further, the policy statement cannot be binding to the extent 

it contradicts the FSA because guidelines can only be binding if they do not 

contradict statutes. See United States v. Adeyemi, No. 06-cr-124, 2020 WL 

3642478, at *14 (E.D. Pa. July 6, 2020) (holding that the policy statement is 

not binding because “[t]he plain language of section 3582(c)(1)(A)(i), not 

just Congress’s intent to improve and increase compassionate release, 

contradicts the introductory phrase of Note 1(D) to the Commission’s policy 

statement” (citing United States v. LaBonte, 520 U.S. 751 (1997) & Stinson v. 

United States, 508 U.S. 36 (1993))). 6 See United States v. Lynn, No. 89-cr-0072, 2019 WL 3805349, at *4 (S.D. Ala. 

Aug. 13, 2019) (“Should the Commission so amend its policy statement, the 

courts will of course be bound by Section 3582(c)(1)(A) to follow the amended 

version.”), appeal dismissed, No. 19-13239-F, 2019 WL 6273393 (11th Cir. Oct. 

8, 2019).

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meantime,7 the Commission’s policy statement, while inapplicable

to motions by defendants, nonetheless provides helpful guidance 

to the Court in determining what constitutes extraordinary and 

compelling reasons.8 United States v. Ebbers, 432 F. Supp. 3d 

421, 427 (S.D.N.Y. 2020).

2. Reasons Other Than Illness, Old Age, and Family 

Circumstances

The Court will consider Andrews’s suggested reasons for 

finding that extraordinary and compelling reasons are present, 

except when the proposed reasons violate the doctrine of

separation of powers. Andrews presents the following as 

extraordinary and compelling reasons: (1) young age at the time 

of the offense, (2) rehabilitation in prison, (3) susceptibility 

to COVID-19, (4) the prosecutorial charging decision, (5) the 

length of the sentence, and (6) the amendment to § 924(c).

Not all of Andrews’s suggested reasons are appropriate to 

consider. The offender’s young age and rehabilitation may be 

extraordinary reasons in that they may be “[b]eyond what is 

usual, customary, regular, or common.” Extraordinary, Black’s 

Law Dictionary (10th ed. 2014). Similarly, young age and 

rehabilitation may be compelling in that they may demonstrate 

 

7 See Rodriguez, --- F. Supp. 3d. at ----, 2020 WL 1627331, at *6 (“Nothing in 

§ 3852(c)(1)(A)(i) requires courts to sit on their hands in situations like 

these. Rather, the statute’s text directly instructs courts to ‘find that’ 

extraordinary circumstances exist.”).

8 See infra Section IV.B.

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“[a] need so great that irreparable harm or injustice would 

result if it is not met.” Compelling Need, Black’s Law 

Dictionary (10th ed. 2014). And the government does not dispute 

that susceptibility to COVID-19, under certain circumstances,

can be an extraordinary and compelling reason. But the other 

three reasons—the prosecutor’s charging decision, the length of 

the sentence, and the amendment to § 924(c)—implicate separation 

of powers concerns.

A sentence is the result of decisions by all three branches 

of the government. The legislature defines the crime and 

establishes the penalty. The executive determines whether to 

prosecute the crime. And the judiciary imposes a specific 

sentence following a conviction, but within the scope of the 

penalty established by the legislature. Thus, a motion for 

compassionate release calls into question the judgments of all 

three branches. The Supreme Court has recognized that sentencing 

“has never been thought of as the exclusive constitutional 

province of any one Branch.” Mistretta v. United States, 488 

U.S. 361, 390 (1989). So, determining the power of the Court to 

reduce a sentence implicates separation of powers jurisprudence, 

which is animated by a concern about “the encroachment or 

aggrandizement of one branch at the expense of the other.” Id.

at 382 (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976)).

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The separation of powers doctrine requires “that the 

Judicial Branch neither be assigned nor allowed ‘tasks that are 

more properly accomplished by [other] branches.’” Id. at 383 

(alteration in original) (quoting Morrison v. Olson, 487 U.S. 

654, 680–81 (1988)). Thus, any consideration of extraordinary 

and compelling reasons must respect Congress’s “exclusive power 

to define offenses and to establish penalties” and recognize 

that “the decision whether or not to prosecute and what charges 

to file generally rests within the prosecutor’s broad 

discretion.” United States v. MacEwan, 445 F.3d 237, 251 (3d 

Cir. 2006) (internal quotations and quotation marks omitted).

As to the three reasons that raise separation of powers 

concerns here—i.e., the prosecutor’s charging decision, the 

length of the sentence, and the amendment to § 924(c)—the Court 

will assume, without deciding, that prosecutorial decisions may 

appropriately be considered as extraordinary and compelling 

reasons, despite the serious separation of powers concerns.9 But 

 

9 In our criminal justice system, “[w]hether to prosecute and what charge to 

file or bring before a grand jury are decisions that generally rest in the 

prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 

(1979). And judicial authority to review prosecutorial decisions remains a 

“limited authority to affect prosecutorial actions when those actions are 

taken in violation of the Constitution.” United States v. Santtini, 963 F.2d 

585, 596 (3d Cir. 1992). That said, Congress may place some “statutory [] 

limits enforceable through judicial review” on “the exercise of prosecutorial 

discretion.” Nader v. Saxbe, 497 F.2d 676, 679 n.19 (D.C. Cir. 1974); see 

also The Confiscation Cases, 74 U.S. 454, 457 (1868). But courts “may not 

lightly impute to Congress an intent to remove prosecutorial discretion from 

the Executive and place it in courts and private parties.” Nathan v. Smith, 

737 F.2d 1069, 1079 (D.C. Cir. 1984) (Bork, J., concurring); see also United 

States v. HSBC Bank USA, N.A., 863 F.3d 125, 138 (2d Cir. 2017); United

States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). In this 

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the other two suggested reasons—the length of the sentence and 

the amendment to § 924(c)—implicate separation of powers 

concerns that cannot be avoided and to which the Court now 

turns.

a. Length of the Sentence

The length of the sentence cannot be an extraordinary and 

compelling reason to grant compassionate release because this 

would infringe on the legislature’s province to fix penalties. 

This is especially true when mandatory minimums are involved. In 

essence, Andrews asks the Court to reevaluate his sentence and 

fashion its own brand of justice. But to do so in this manner

would intrude on legislative prerogatives.

In our criminal justice system, “the fixing of prison terms 

for specific crimes involves a substantive penological judgment 

that, as a general matter, is ‘properly within the province of 

legislatures, not courts.’” Harmelin v. Michigan, 501 U.S. 957, 

998 (1991) (Kennedy, J., concurring) (quoting Rummel v. Estelle, 

445 U.S. 263, 275–76 (1980)). It is well settled that “the scope 

of judicial discretion with respect to a sentence is subject to 

 

case, the Court need not determine whether the FSA authorizes judicial review 

of charging decisions because, as discussed further below, Andrews does not 

even begin to come close to a showing of prosecutorial misconduct or abuse of 

discretion. See infra Section IV.B. Therefore, the Court will assume without 

deciding that the FSA authorizes a consideration of prosecutorial decisions 

as extraordinary and compelling reasons.

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congressional control.” Mistretta, 488 U.S. at 364 (citing Ex 

parte United States, 242 U.S. 27 (1916)). “Congress has the 

power to define criminal punishments without giving the courts 

any sentencing discretion.” Chapman v. United States, 500 U.S. 

453, 467 (1991) (citation omitted). Ultimately, in legislating 

mandatory sentences for certain crimes, Congress divested the 

courts of all sentencing discretion below those mandatory 

minimums. MacEwan, 445 F.3d at 251.

Reducing a sentence based on the length of the sentence 

would be a usurpation of Congress’s power to set criminal 

penalties. Compassionate release does not give federal courts 

free rein to reassess lawfully imposed sentences; it “is not an 

opportunity to second guess or to reconsider whether the 

original sentence was just.” United States v. Ebbers, 432 F.

Supp. 3d 421, 429 (S.D.N.Y. 2020). Compassionate release is not 

a form of judicial (as opposed to executive) clemency.

And especially where the length of the sentence was 

determined by the imposition of a mandatory minimum, the 

encroachment into the legislature’s province is exacerbated. 

Reducing a mandatory minimum sentence based on its length is a 

bold assertion of full discretion—constrained only by the 

Court’s own assessment of whether the length is extraordinary 

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and compelling—where Congress expressly divested the courts of 

all such discretion.10

Further, to consider the length of the sentence as an 

extraordinary and compelling reason for reducing a sentence also 

offends the rule of finality enacted by Congress. 18 U.S.C. 

§ 3582(b). It is true that compassionate release provides “an 

‘exception to the general rule of finality’ over sentencing 

judgments.” United States v. Rodriguez, 855 F.3d 526, 529 (3d 

Cir. 2017) (quoting Dillon v. United States, 560 U.S. 817, 824 

(2010)). But this limited power does not license courts to 

revisit all sentences. In other words, if the Court were 

permitted under the guise of compassionate release to reduce a 

sentence based on the Court’s idiosyncratic belief that the

previously imposed sentence is too long, compassionate release 

would be the exception that swallows the general rule of 

finality. Under this view, a federal court could resentence a 

defendant immediately after the defendant has been sentenced. 

And a court could reduce a duly imposed sentence to time served

 

10 The Court only holds that the length of a sentence, including a sentence 

imposed pursuant to a mandatory minimum, cannot itself be an extraordinary 

and compelling reason for granting compassionate release. The reduction of a 

sentence below the mandatory minimum is a separate and distinct issue. 

Whether a sentence that was imposed pursuant to a mandatory minimum may be 

reduced where there are valid extraordinary and compelling reasons, e.g., 

illness, remains an open question. See United States v. Varnado, No. 14-cr283, 2020 WL 2512204, at *1 n.1. (S.D. Cal. May 15, 2020) (“Whether district 

courts have authority to grant a reduction in sentence under § 3582(c)(1)(A) 

where the defendant’s original sentence was based on a mandatory minimum is 

an open question.”), appeal docketed, No. 20-50160 (9th Cir. June 10, 2020).

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immediately after the sentence is pronounced. Under these 

circumstances, the federal judiciary would return to the muchcriticized indeterminate sentencing regime, and a duly imposed, 

legal sentence would be simply aspirational, without the 

requisite finality.

Therefore, the Court cannot consider the length of a 

lawfully imposed sentence, even if it is a disproportionate 

sentence, as an extraordinary and compelling reason warranting 

compassionate release.

b. Amendment to § 924(c)

The FSA’s amendment to § 924(c) cannot be an extraordinary 

and compelling reason because this would intrude on Congress’s 

authority to determine the temporal scope of its statutes. The 

amendment is expressly not retroactive, and the retroactivity of 

a statute is determined by Congress and not by a court, unless 

Congress has not expressly determined its retroactivity.

Granting a motion for compassionate release on the basis of the 

amendment to § 924(c) would supplant the retroactivity 

determination of courts—that the amendment should be applied 

retroactively on a case-by-case basis—for the retroactivity 

determination of Congress—that the amendment should not be 

applied retroactively. When Congress speaks on the retroactivity 

of the statute, its judgment is final. 

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Retroactivity doctrine “allocates to Congress 

responsibility for fundamental policy judgments concerning the 

proper temporal reach of statutes.” Landgraf v. USI Film Prod., 

511 U.S. 244, 273 (1994). And a court only determines the 

retroactivity of a statute when “the statute contains no []

express command” regarding retroactivity. Id. at 280. This is 

because “the legislative power is the power to make law, and 

Congress can make laws that apply retroactively.” Patchak v. 

Zinke, 138 S. Ct. 897, 905 (2018). The constitutional 

restrictions on Congress’s authority to decide the retroactivity 

of statutes are limited to the Ex Post Facto Clause, the 

Contracts Clause, the Takings Clause, the Bills of Attainder

Clause, and the Due Process Clause. Bank Markazi v. Peterson, 

136 S. Ct. 1310, 1325 (2016) (citing Landgraf 511 U.S. at 266–

67). But “[a]bsent a violation of one of those specific 

provisions,” the Court must give a statute “its intended 

[temporal] scope.” Id. (quoting Landgraf, 511 U.S. at 267–68).

A number of courts that have considered whether the 

amendment to § 924(c) can be an extraordinary and compelling 

reason have held that it can.11 These courts reason that “a 

 

11 See United States v. Quinn, --- F. Supp. 3d ----, No. 91-cr-00608, 2020 WL 

3275736, at *4 (N.D. Cal. June 17, 2020) (“Consistent with numerous other 

courts to have confronted similar situations since the FSA, this decision 

turns on the enormous sentencing disparity created by subsequent changes to 

federal sentencing law which constitutes an ‘extraordinary and compelling 

reason’ for Quinn’s compassionate release.”); United States v. Brown, --- F. 

Supp. 3d ----, No. 05-cr-00227-1, 2020 WL 2091802, at *8 (S.D. Iowa Apr. 29, 

2020) (collecting cases).

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20

legislative rejection of the need to impose sentences under 

§ 924(c), as originally enacted, as well as a legislative 

declaration of what level of punishment is adequate” is an

extraordinary and compelling reason. United States v. Redd, ---

F. Supp. 3d ----, No. 97-cr-00006, 2020 WL 1248493, at *6 (E.D. 

Va. Mar. 16, 2020) (footnote omitted). Some of these courts hold 

that the amendment may only be a basis for granting 

compassionate release “in combination with other circumstances.” 

United States v. Defendant(s), No. 99-cr-00257, 2020 WL 1864906, 

at *6 (C.D. Cal. Apr. 13, 2020) (quoting United States v. 

O’Bryan, No. 96-cr-10076-03, 2020 WL 869475, at *2 (D. Kan. Feb. 

21, 2020)). They reason that the amendment’s express nonretroactivity forecloses granting a motion for compassionate 

release when the amendment is the only reason for doing so but 

does not prevent a court from granting compassionate release 

based on the amendment together with another reason. United 

States v. Brown, --- F. Supp. 3d ----, No. 05-cr-00227-1, 2020 

WL 2091802, at *9 (S.D. Iowa Apr. 29, 2020).12

 

12 See also United States v. Pitts, No. 94-cr-70068-2, 2020 WL 1676365, at *7 

(W.D. Va. Apr. 6, 2020) (“To be clear, the limitation of § 403(b) does not 

necessarily preclude the court from reducing Pitts' drug sentences. But 

§ 403(b) indicates that Congress did not intend the sentencing disparity 

between defendants sentenced before and after the § 924(c) amendment to 

constitute a sufficient basis on its own to grant the reduction Pitts 

seeks.”), appeal docketed, No. 20-6551 (4th Cir. Apr. 22, 2020); United 

States v. Chan, No. 96-cr-00094-13, 2020 WL 1527895, at *6 (N.D. Cal. Mar. 

31, 2020) (“It is not unreasonable for Congress to conclude that not all 

defendants convicted under § 924(c) should receive new sentences, even while 

expanding the power of the courts to relieve some defendants of those 

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21

This reasoning is not persuasive. This interpretation 

“effectively [provides the statute] retroactive effect on a 

case-by-case basis.” United States v. Jackson, No. 08-cr-20150-

02, 2020 WL 2812764, at *5 (D. Kan. May 29, 2020), reconsidered

on other grounds, No. 08-cr-20150-02, 2020 WL 4284312, at *1 (D. 

Kan. July 27, 2020). The amendment provides as follows: “This 

section, and the amendments made by this section, shall apply to 

any offense that was committed before the date of enactment of 

this Act, if a sentence for the offense has not been imposed as 

of such date of enactment.” § 403(b), 132 Stat. 5194, 5222. The 

text of the amendment plainly states that individuals will 

receive the benefit of the amendment if they have not been 

sentenced. Considering the amendment as an extraordinary and 

compelling reason is giving the benefit of the amendment to 

individuals who were already sentenced, thus turning the 

amendment on its head. If Congress wanted the amendment to be 

retroactive on a case-by-case basis, it would have said so in 

the text of the statute.

The legislative history of the FSA informs that the 

amendment was the product of a legislative compromise,13 which

 

sentences on a case-by-case basis.” (quoting United States v. Maumau, No. 08-

cr-00758-11, 2020 WL 806121 (Feb. 18, 2020))). 13 See 164 Cong. Rec. S7,749 (daily ed. Dec. 18, 2018) (statement of Sen. 

Leahy) (“I would like to see a broader judicial safety valve and additional 

retroactive activity. . . . But this is the nature of compromise. You don’t 

get everything you want. And when I look at the scope of reforms before us 

today—including a modest expansion of the safety valve, retroactive 

application of the Fair Sentencing Act, a reduction to some of the most 

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22

the Court must respect. In other words, the Court must “giv[e] 

full effect to all of Congress’ statutory objectives, as well as 

the specific balance struck among them.” Lewis v. Alexander, 685 

F.3d 325, 343 (3d Cir. 2012) (citing Rodriguez v. United States, 

480 U.S. 522, 525–26 (1987)). To contradict the plain text of 

the statute based on the title of the amendment14 or the greater 

purpose of the FSA “frustrates rather than effectuates 

legislative intent.” Rodriguez, 480 U.S. at 526. Invocations of

lofty ideals of criminal justice reform enshrined throughout the 

FSA do not override the plain text of the amendment.

Moreover, the argument that compassionate release can be 

used as a vehicle to provide case-by-case retroactivity without 

running afoul of the retroactivity provision ignores principles 

of statutory construction. The Court looks to “the canon

generalia specialibus non derogant, that the specific governs 

 

indefensible mandatory minimums on the books, as well as reforms to add 

evidence-based practices to our prison system and reentry efforts—I believe 

this is a historic achievement.”); 164 Cong. Rec. S7,649–50 (daily ed. Dec. 

17, 2018) (statement of Sen. Grassley) (“Some have called for eliminating 

mandatory minimums or cutting them back severely. I happen to be a supporter 

of mandatory minimum sentences because it helps law enforcement take down 

criminal enterprises, but at the same time, I recognize there is some 

unfairness in how these mandatory minimum sentences are sometimes 

applied. . . . The President deserves credit for brokering a deal that 

improves fairness and supports law enforcement. A tremendous amount of credit 

is also due to my colleagues in the Senate who helped to forge a bipartisan 

compromise on complex issues.”).

14 See United States v. Quinn, --- F. Supp. 3d ----, No. 91-cr-00608, 2020 WL 

3275736, at *4 (N.D. Cal. June 17, 2020) (“‘The portion of the First Step Act 

amending § 924(c) is titled “Clarification of Section 924(c), ... suggesting 

that Congress never intended the statute to result in a “stacked” sentence’

like Quinn’s.” (alteration in original) (quoting United States v. Decator, --

- F. Supp. 3d ----, No. 95-cr-0202, 2020 WL 1676219, at *4 (D. Md. Apr. 6, 

2020))).

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23

the general in interpreting a statutory scheme.” Cazun v. 

Attorney Gen. United States, 856 F.3d 249, 256 (3d Cir. 2017).

Before applying this canon, it must be determined that the two 

provisions at issue “both address the same subject matter” and 

“cannot be reconciled.” Creque v. Luis, 803 F.2d 92, 94–95 (3d 

Cir. 1986).

The generalia canon forecloses the use of the compassionate 

release provision to circumvent the retroactivity provision. The

two provisions address the same subject matter in that, when 

compassionate release takes the amendment into account, they 

both address whether sentenced defendants will get the benefit 

of the amendment. And holding that the provisions are reconciled

by not giving the benefit of the amendment to all sentenced 

defendants but only to some sentenced defendants on a case-bycase basis is a rewriting of the amendment, not a reconciliation 

at all. To be retroactive is to “extend[] in scope or effect to 

matters that have occurred in the past.” Retroactive, Black’s 

Law Dictionary (10th ed. 2014). The retroactivity provision 

provides specifically that the amendment will extend to matters 

where the defendant has not been sentenced. To construe the 

amendment to apply to matters where the defendant has already 

been sentenced makes the general provision trump the specific 

provision.

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24

Therefore, the Court cannot consider the amendment to 

§ 924(c) as an extraordinary and compelling reason for granting 

compassionate release.

B. Extraordinary and Compelling Reasons in this Case

Having determined the authority and circumstances under 

which a sentence may be reduced, the Court now turns to whether 

Andrews presents reasons warranting compassionate release.

Neither Congress nor the Commission have elaborated on the 

meaning of extraordinary and compelling reasons other than old

age, health, and family circumstances. In the absence of 

guidance, the Court gives these terms their ordinary meanings.

See United States v. Castano-Vasquez, 266 F.3d 228, 233 (3d Cir. 

2001) (citing Chapman v. United States, 500 U.S. 453, 461–62 

(1991)). 

The ordinary meaning of extraordinary is “[b]eyond what is 

usual, customary, regular, or common.” Extraordinary, Black’s 

Law Dictionary (10th ed. 2014).15 And the ordinary meaning of

compelling need is “[a] need so great that irreparable harm or 

injustice would result if it is not met.” Compelling Need, 

Black’s Law Dictionary (10th ed. 2014).

 

15 Accord United States v. Castano-Vasquez, 266 F.3d 228, 233 (3d Cir. 2001) 

(“The ordinary meaning of ‘extraordinary’ is ‘more than ordinary . . . going 

beyond what is usual, regular, common, or customary . . . exceptional to a 

very marked extent.’” (alterations in original) (citing Webster’s New Int’l 

Dictionary 807 (3d ed. 1993))).

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25

In enacting the FSA, Congress chose the terms to be 

expressed in the conjunctive. See Reese Bros. v. United States, 

447 F.3d 229, 235 (3d Cir. 2006) (“The usual meaning of the word 

‘and,’ however, is conjunctive.”). Each of the terms, 

“extraordinary” and “compelling,” has a distinct meaning. When 

Congress chooses to speak in the conjunctive, it intends that 

each element of the conjunction be satisfied separately and 

individually. See id. at 235–37. In other words, for 

compassionate release to be available, in the first instance, 

the Court must find that there are sufficient grounds that the 

circumstances identified by the defendant are both extraordinary 

and compelling.

Most commonly, though, Courts conflate the two terms,

applying a sort of “totality of the circumstances” or seat-ofthe-pants “I know it when I see it” approach.16 This manner of 

 

16 See, e.g., United States v. Clausen, No. 00-cr-291-2, 2020 WL 4260795, at 

*7 (E.D. Pa. July 24, 2020) (“Clausen’s circumstances—particularly the 

combination of his excessive sentence and his demonstrated rehabilitation—

present extraordinary and compelling reasons that justify a sentence 

reduction.”); United States v. Adeyemi, No. 06-cr-124, 2020 WL 3642478, at 

*28 (E.D. Pa. July 6, 2020) (“We ultimately conclude Mr. Adeyemi has shown 

extraordinary and compelling reasons—not due to Mr. Adeyemi’s health 

conditions alone, nor due to a change in sentencing law, but under the 

combination of the factors approved and applied by the Bureau of Prisons.”); 

McCoy v. United States, No. 03-cr-197, 2020 WL 2738225, at *6 (E.D. Va. May 

26, 2020) (“While none of the foregoing factors can independently support a 

sentence reduction, in combination, Petitioner has established extraordinary 

and compelling reasons for a sentence reduction in the aggregate. 

Specifically, Petitioner’s relative youth at the time of the sentence, the 

overall length of the sentence, the disparity between his sentence and those 

sentenced for similar crimes after the FIRST STEP Act, and his rehabilitative 

efforts form an extraordinary and compelling basis for relief.”), appeal 

docketed, (4th Cir. June 5, 2020).

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exercising the “broad discretion of the district court risks

introducing significant disparities in sentences under the 

rubric of compassionate release,” depending upon the prism 

through which individual courts view the case. United States v. 

Ebbers, 432 F. Supp. 3d 421, 430 (S.D.N.Y. 2020).

In the presence of this vague standard, the Court’s 

judgment can be informed by the Commission’s policy statement, 

the BOP’s program statement, and the case law interpreting them. 

Of course, neither the Commission’s policy statement, the BOP’s

program statement, nor, in the absence of Supreme Court or Third 

Circuit guidance, the case law interpreting them is binding on 

the Court.17 Nor is their application mandatory. However, they

are helpful in that they represent the sort of experience and 

collective wisdom to guide us in this uncharted area.

The Commission’s policy statement provides that 

extraordinary and compelling reasons exist when the defendant is 

suffering from an irremediable medical condition, has reached an 

 

17 As discussed above, the Commission’s policy statement and the BOP’s program 

statement are not applicable to compassionate release motions brought by 

defendants, and thus they are not binding on the Court here. See supra

Section IV.A.1. And the only court of appeals to consider the question of 

other extraordinary and compelling reasons so far is the Tenth Circuit, in a 

nonprecedential opinion. See United States v. Saldana, 807 F. App’x 816, 819 

(10th Cir. 2020) (nonprecedential) (“BOP Program Statement 5050.50 identifies 

several nonexclusive factors to determine whether ‘other’ extraordinary and 

compelling reasons exist: the defendant’s criminal and personal history, 

nature of his offense, disciplinary infractions, length of sentence and 

amount of time served, current age and age at the time of offense and 

sentencing, release plans, and ‘[w]hether release would minimize the severity 

of the offense.’” (quoting Federal Bureau of Prisons, Program Statement 

5050.50 at 12 (Jan. 17, 2019))).

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old age after serving a substantial portion of a sentence and is 

deteriorating in health, or becomes the only available caregiver 

for a minor or spouse.18 The policy statement also provides that 

“other” reasons may be extraordinary and compelling, without 

further defining these “other” reasons. U.S. Sentencing 

Guidelines Manual § 1B1.13 cmt. n.1(D) (U.S. Sentencing Comm’n 

2018). While the enumerated reasons (i.e. illness, old age, and 

family circumstances) look to circumstances at the time the 

motion is made, the policy statement provides that “the fact 

that an extraordinary and compelling reason reasonably could 

have been known or anticipated by the sentencing court does not 

preclude consideration for a reduction under this policy 

statement.” Id. at § 1B1.13 cmt. n.2.

Reviewed in toto, the common theme throughout the policy 

statement is that there are extraordinary and compelling reasons 

in situations where there are uncommon circumstances and

continued imprisonment would result in a significant collateral 

 

18 U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.1(A)–(C) (U.S. Sentencing 

Comm’n 2018) (providing that extraordinary and compelling circumstances exist 

when (1) “defendant is suffering from a terminal illness” or from a condition 

“that substantially diminishes the ability of the defendant to provide selfcare within the environment of a correctional facility and from which he or 

she is not expected to recover;” (2) “defendant (i) is at least 65 years old; 

(ii) is experiencing a serious deterioration in physical or mental health 

because of the aging process; and (iii) has served at least 10 years or 75 

percent of his or her term of imprisonment, whichever is less;” or (3) there 

is a “death or incapacitation of the caregiver of the defendant’s minor child 

or minor children” or “incapacitation of defendant’s spouse or registered 

partner when the defendant would be the only available caregiver for the 

spouse or registered partner”).

Case 2:05-cr-00280-ER Document 266 Filed 08/19/20 Page 27 of 37
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or secondary harm to the defendant. This understanding is 

consistent with the ordinary meaning of the words 

“extraordinary” and “compelling.” And a number of courts have 

found extraordinary and compelling reasons in situations 

consistent with this understanding. One such situation is where

there is an uncommon illness or medical complication

(extraordinary) and continued imprisonment increases the 

likelihood of an untimely death or a serious injury

(compelling).19 Another situation is where the defendants or

their dependents are unusually vulnerable (extraordinary) and 

continued imprisonment inflicts harm on certain ailing 

defendants or on defendants’ closely-related dependents with no 

other caregiver (compelling).20 Thus, “other” situations

warranting a finding of extraordinary and compelling reasons may 

also be found when there are unusual conditions (extraordinary)

 

19 See United States v. Rodriguez, --- F. Supp.3d ----, No. 03-cr-00271-1, 

2020 WL 1627331, at *7 (E.D. Pa. Apr. 1, 2020) (finding that it is 

extraordinary and compelling that the defendant “suffers from underlying 

health conditions that render him especially vulnerable to COVID-19,” that 

“prison is a particularly dangerous place for [the defendant] at this 

moment,” and that “he has served almost all of his sentence and has shown 

commendable rehabilitation while in prison”); United States v. Beck, 425 F. 

Supp. 3d 573, 581 (M.D.N.C. 2019) (finding that it is extraordinary and 

compelling that “[a]s long as [the defendant] stays in BoP custody, she faces 

a substantial likelihood of substandard medical care for her life-threatening 

disease”). 20 See Ebbers, 432 F. Supp. 3d at 432 (finding that it is extraordinary and 

compelling that the defendant is over 65 years old, has served more than ten 

years, and “is sick, weak, disoriented, and bedridden”); United States v. 

Bucci, 409 F. Supp. 3d 1, 2 (D. Mass. 2019) (finding that it is extraordinary 

and compelling that “[the defendant] is the only available caregiver for an 

ailing, close member of his family: his mother” (internal quotation and 

quotation marks omitted)).

Case 2:05-cr-00280-ER Document 266 Filed 08/19/20 Page 28 of 37
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and continued imprisonment results in a significant collateral

or secondary harm to the defendant (compelling).

The Commission’s policy statement further informs the Court 

by reference to the BOP, which provides a list of factors to 

guide the Court’s judgment. The BOP’s program statement provides 

that, in determining whether to grant compassionate release, the 

following should be considered: (1) the nature of the offense; 

(2) the inmate’s criminal history, personal history, current 

age, age at the time of the offense, discipline in prison, 

adjustment to prison, and release plans; (3) any detainers that 

have not been resolved; (4) the amount of the sentence served; 

(5) any victim’s comments; and (6) “[w]hether release would 

minimize the severity of the offense.” Federal Bureau of 

Prisons, Program Statement 5050.50 at 12 (Jan. 17, 2019). In 

many ways, these considerations overlap with the § 3553(a) 

factors, which a court must ultimately consider before granting 

compassionate release. See United States v. Beck, 425 F. Supp. 

3d 573, 580 (M.D.N.C. 2019).

In attempting to divine the meaning of “other” reasons (not 

enumerated in the policy statement), some courts have

interpreted the BOP’s program statement, providing this list of 

factors, as an additional basis, or additional bases, for 

finding extraordinary and compelling reasons. See United States 

v. Adeyemi, No. 06-cr-124, 2020 WL 3642478, at *25 (E.D. Pa. 

Case 2:05-cr-00280-ER Document 266 Filed 08/19/20 Page 29 of 37
30

July 6, 2020). But the BOP’s program statement factors are not 

necessarily “other” extraordinary and compelling reasons. While 

the factors may be helpful in informing the judgment of the 

Court, the presence of one or more of these factors is not 

sufficient in and of itself to justify the granting of 

compassionate release. 

In fact, the BOP’s program statement presents the factors 

as aids to the exercise of discretion, not as independent 

reasons for granting compassionate release. The very language of 

the program statement directs that these factors should be 

considered “[f]or all [compassionate release] requests,” 

including under illness, old age, and family circumstances (the 

enumerated reasons), not just for “other” extraordinary and 

compelling reasons. Federal Bureau of Prisons, Program Statement 

5050.50 at 12 (Jan. 17, 2019).

Moreover, these factors are “considered to assess whether 

the [compassionate release] request presents particularly

extraordinary and compelling circumstances,” not whether the 

compassionate release request presents “other” extraordinary and 

compelling reasons. Id. (emphasis added). So, for example, there 

may be extraordinary and compelling reasons for reducing the 

sentence of a defendant who is exposed to an increased risk of 

serious illness by susceptibility to COVID-19, but only if he 

Case 2:05-cr-00280-ER Document 266 Filed 08/19/20 Page 30 of 37
31

has completed a large portion of his sentence and not if he has 

completed a small portion of his sentence.

Distilling the teachings from both the Commission’s policy

statement and the BOP’s program statement, the Court concludes 

that there are extraordinary reasons where there are uncommon or 

unusual circumstances, and there are compelling reasons where 

continued imprisonment would result in a significant secondary

or collateral harm to the defendant. Accordingly, the Court will 

apply this standard to the remaining reasons proposed by 

Andrews: (1) the government’s charging decision, (2) Andrews’s 

susceptibility to COVID-19, (3) his age, and (4) his 

rehabilitation. The Court will consider each reason advanced by 

Andrews in turn.

First, Andrews points to the prosecutor’s decision to 

charge thirteen stacking § 924(c) counts. There is no evidence 

that Andrews was singled out or treated differently from the 

other three defendants in this case or other similarly situated 

defendants. Instead, the facts are that the prosecutors followed 

applicable prosecutorial policies. At the time that Andrews was 

prosecuted, in 2005, the exercise of prosecutorial discretion by 

line prosecutors at the United States Attorney’s Office for the 

Eastern District of Pennsylvania was controlled by Department of 

Justice policy. The relevant charging policy at the time was 

detailed in a memorandum from Attorney General John Ashcroft. 

Case 2:05-cr-00280-ER Document 266 Filed 08/19/20 Page 31 of 37
32

Memorandum from John Ashcroft, Att’y Gen., Dep’t of Justice, to 

U.S. Attorneys Regarding Policy on Charging of Criminal 

Defendants (Sept. 22, 2003) (“Ashcroft Memo”), 

https://www.justice.gov/archive/opa/pr/2003/September/03_ag_516.

htm (last visited Aug. 18, 2020). 

The prosecutors in this case acted in accordance with the 

Department of Justice charging policies, such that there was no 

abuse of prosecutorial discretion. The policy provided that “in 

all federal criminal cases, federal prosecutors must charge and 

pursue the most serious, readily provable offense or offenses 

that are supported by the facts of the case.” Id. It further 

provided that “[t]he use of statutory enhancements is strongly 

encouraged, and federal prosecutors must therefore take 

affirmative steps to ensure that the increased penalties 

resulting from specific statutory enhancements, such as the 

filing of an information pursuant to 21 U.S.C. § 851 or the 

filing of a charge under 18 U.S.C. § 924(c), are sought in all 

appropriate cases.” Id. Indeed, pursuant to the policy “[a] 

prosecutor may forego or dismiss a charge of a violation of 18 

U.S.C. § 924(c) only with the written or otherwise documented 

approval of an Assistant Attorney General [or another 

supervisor].” Id. Thus, Andrews points to no facts showing that 

prosecutors abused their discretion. And, accordingly, the 

prosecutor’s charging decision does not favor finding

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33

extraordinary and compelling reasons for granting compassionate 

release.

Second, Andrews points to his susceptibility to COVID-19. 

At the outset, “the mere existence of COVID-19 in society and 

the possibility that it may spread to a particular prison alone 

cannot independently justify compassionate release.” United 

States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). A risk factor 

is required, and when a defendant’s “hypertension was described 

as ‘mild’ and he was prescribed two medications for the 

condition,” that “defendant has not established that his high 

blood pressure and related medical conditions constitute a 

serious medical condition” to find extraordinary and compelling 

reasons. United States v. Nesbitt, No. 09-cr-181, 2020 WL 

3412577, at *2–3 (E.D. Pa. June 22, 2020). Andrews does not 

describe his hypertension beyond saying that it requires 

medication, and thus the Court finds that it is not a serious 

enough condition to favor finding extraordinary and compelling 

reasons.21

 

21 Additionally, the risk to Andrews at USP Canaan, the facility where he is 

housed, is at this point little more than speculative. See United States v. 

Buckman, No. 14-cr-540-01, 2020 WL 4201509, at *4 (E.D. Pa. July 22, 2020) 

(“When prisons can keep the number of positive COVID-19 cases low or even at 

zero, which is the case at Alderson FPC, the risk of exposure is too 

speculative to render the circumstances extraordinary and compelling.” 

(citation omitted)). There are zero positive test of 230 that have been 

conducted at the institution. Federal Bureau of Prisons, COVID-19: 

Coronavirus, https://www.bop.gov/coronavirus/ (last visited Aug. 18, 2020).

And the BOP has implemented protocols to curb the spread of the novel 

coronavirus in the future and to ensure the safety of all inmates, including 

the quarantining of inmates who are susceptible to the virus due to 

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34

Third, Andrews points to his young age at the time he 

committed the offenses. He was nineteen years old at the time he 

committed the offenses. Only three percent of all federal 

offenders were less than twenty-one years old in 2019. U.S. 

Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics 

Table 7 (2019), 

https://www.ussc.gov/sites/default/files/pdf/research-andpublications/annual-reports-and-sourcebooks/2019/Table07.pdf

(last visited Aug. 18, 2020). So, his age at the time of the 

offenses is beyond what is common, i.e., extraordinary. And this

young age indicates less culpability and enhances the 

possibility of rehabilitation.22 So, his age at the time of the 

offenses favors granting compassionate release.

Fourth, Andrews points to his rehabilitation in prison. He 

has an unblemished disciplinary record since 2013 and regularly 

attends church. He has also taken classes that have prepared him 

for employment in carpentry, plumbing, and personal fitness. And 

 

preexisting health conditions. Federal Bureau of Prisons, BOP Implementing 

Modified Operations, https://www.bop.gov/coronavirus/covid19_status.jsp (last 

visited Aug. 18, 2020). 22 See Miller v. Alabama, 567 U.S. 460, 472 (2012) (“We reasoned that those 

findings—of transient rashness, proclivity for risk, and inability to assess 

consequences—both lessened a child’s ‘moral culpability’ and enhanced the 

prospect that, as the years go by and neurological development occurs, his 

‘deficiencies will be reformed.’” (quoting Graham v. Florida, 560 U.S. 48, 68

(2010))); James C. Howell et al., Bulletin 5: Young Offenders and an 

Effective Response in the Juvenile and Adult Justice Systems: What Happens, 

What Should Happen, and What We Need to Know 18 (2013), 

https://www.ncjrs.gov/pdffiles1/nij/grants/242935.pdf (“Hence adolescents and 

young adults simply do not have the physiological capacity of adults over age 

25 to exercise judgment or control impulses.”) (last visited Aug. 18, 2020).

Case 2:05-cr-00280-ER Document 266 Filed 08/19/20 Page 34 of 37
35

he assisted in the development of a crochet program, under which 

he volunteers time to knitting items to donate to the Salvation 

Army. Thus, Andrews’s rehabilitation can also be viewed as 

extraordinary, and it favors granting the motion.

And yet, Andrews’s young age and rehabilitation are not

compelling reasons by themselves to warrant the Court’s exercise 

of its discretion to reduce his sentence.23 The Court is not 

aware of any cases where young age at the time of the offense 

and rehabilitation were found to be both extraordinary and 

compelling to warrant granting compassionate release without 

other reasons to support it.24 Although Andrews’s age at the time 

of the offense and his rehabilitation are uncommon, and thus 

extraordinary, these reasons are not compelling to warrant a

sentence reduction in that there is no significant collateral or 

secondary harm to Andrews by his continued imprisonment.

 

23 Whether to grant an authorized sentence reduction is ordinarily committed

to the discretion of the district court. See United States v. Mateo, 560 F.3d 

152, 154 (3d Cir. 2009) (“We review a court’s ultimate decision whether to 

grant or deny a defendant’s motion to reduce sentence under § 3582(c)(2) for 

abuse of discretion.”); United States v. Castano-Vasquez, 266 F.3d 228, 233 

(3d Cir. 2001) (“We leave the determination of whether a defendant presents 

an extraordinary case to the sound discretion of the sentencing court.”).

24 Cf. McCoy v. United States, No. 03-cr-197, 2020 WL 2738225, at *6 (E.D. Va. 

May 26, 2020) (“Specifically, Petitioner’s relative youth at the time of the 

sentence, the overall length of the sentence, the disparity between his 

sentence and those sentenced for similar crimes after the FIRST STEP Act, and 

his rehabilitative efforts form an extraordinary and compelling basis for 

relief.”), appeal docketed, (4th Cir. June 5, 2020); United States v. Maumau, 

No. 08-cr-00758-11, 2020 WL 806121, at *7 (D. Utah Feb. 18, 2020) (“Based on 

the above, the court concludes that a combination of factors—Mr. Maumau’s 

young age at the time of the sentence, the incredible length of the mandatory 

sentence imposed, and the fact that, if sentenced today, he would not be 

subject to such a long term of imprisonment—establish an extraordinary and 

compelling reason to reduce Mr. Maumau’s sentence.”).

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36

Ultimately, the only harm Andrews articulates, based on 

young age and rehabilitation, is the harm of continued

imprisonment. The BOP’s program statement recognizes age at the 

time of the offense as a factor to consider. And it arguably 

recognizes rehabilitation in that it lists personal history, 

discipline in prison, adjustment to prison, and release plans as 

factors to consider. But as discussed above, the BOP’s program 

statement factors are not necessarily extraordinary and 

compelling reasons in and of themselves. This case illustrates 

why this is so.

The circumstances of Andrews’s imprisonment suggest that a 

number of the BOP’s program statement factors could support a 

finding of extraordinary reasons. And yet there is insufficient

support for a finding of compelling reasons here. It is true 

that there may be a harm in the continued imprisonment of a 

person who is considered rehabilitated and less culpable because 

of his age at the time of the offense. But, unlike the risk of 

contracting a serious illness or the risk of harm to a 

vulnerable dependent, this type of harm is not collateral or 

secondary to imprisonment. The harm here is that Andrews will 

continue to be imprisoned pursuant to a lawfully imposed 

sentence. This is not the harm that compassionate release was 

intended to remedy.

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Therefore, the Court will exercise its discretion to find 

that Andrews does not present extraordinary and compelling 

reasons for granting compassionate release.25

V. CONCLUSION

For the reasons stated above, the motion for compassionate 

release will be denied. An appropriate Order follows.

 

25 While compassionate release is not warranted under the FSA, the facts of 

this case compel the exercise of the executive power to grant clemency and 

order the reduction of this sentence. The sentencing Judge would support such 

an effort.

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